Introduction
A philosophy of sentencing entails defining the notion of punishment and the underlying values, dispositions, and beliefs, as well as rationalizing the imposition of a severe burden on someone. Historically, legal scholars have established four top priorities or reasons for the practice of punishing criminals: retribution, deterrence, rehabilitation, and incapacitation. Furthermore, it has been shown that incarceration is harmful to certain vulnerable groups, as well as those accused of petty offenses when it comes to rehabilitation and reintegration (Butler et al., 2020). Apart from such historical correctional philosophies as retribution, deterrence, incapacitation and rehabilitation, there are other such contemporary forms of punishments as restorative justice, and probation and judicial supervision.
Historical Correctional Philosophies
Retribution
Retribution is an approach that requires offenders’ punishments to be proportional to the amount of damage they caused to their victims—what they justly deserve. Those who commit little offenses should get modest penalties, while those who commit more significant offenses should receive more severe punishments (Larry & Roger, 2018). This is the sincerest reason for punishment, since it appeals to the most primal punishing impulses and proposes no further goal, such as rehabilitation or deterrence.
Deterrence
The premise behind deterrence is that individuals are prevented from committing a crime by the prospect of punishment. This can be done either when it is administered to the person perpetrating the crime (specific deterrence) or when potential culprits are aware of the prospect for punishment (general deterrence) (Larry & Roger, 2018). General deterrence is the effect that the threat of punishment has on the whole population to keep them from breaking the law. It is aimed at people who might break the law.
Incapacitation
Incapacitation refers to the incapacity of incarcerated offenders to victimize individuals beyond prison gates. Its justification is summed up by James Q. Wilson’s (1975) statement, “Wicked people exist. Nothing avails except to set them apart from innocent people “(Larry & Roger, 2018, p. 391). For the purpose of deciding punishment, ideas of guilt, moral responsibility, and motive were less important than establishing how resistant offenders were to their criminal tendencies. This was done so that society would not be at risk again.
Rehabilitation
Rehabilitation is the process of restoring or returning to constructive or healthy behavior. Rehabilitation is generally a positivist idea, while deterrence and incapacitation are mostly justified on classical grounds (Larry & Roger, 2018). The objective of rehabilitation is founded on a medical concept that formerly regarded criminal conduct as a moral illness needing treatment.
Different Approaches to Incarceration
Restorative Justice (RJ)
RJ is a comprehensive sentencing procedure that aims to make amends and promote healing for all parties affected by a crime, including the perpetrator. Through adjudication circles, victim reparations, victim-offender arbitration, and official community service initiatives, representatives of the court system, plaintiffs, perpetrators, and community members collaborate to accomplish these aims. Sentence-making circles take place when the complainant, the criminal, local residents, and law enforcement authorities convene to decide on a penalty that makes up for the damage the perpetrator inflicted. The victim and the offender might meet via victim-offender reconciliation to share regret and atone for the crime that was committed. According to Tongkachok et al. (2021), utilizing RJ to rehabilitate a youngster or adolescent before trial precludes a person from committing an offense again. In this situation, RJ exercises can be used on their own or as part of a probation sentence.
Several nations have developed RJ using practice norms at the national level. RJ development in Scotland, a distinct jurisdiction and autonomous country inside the United Kingdom, has been somewhat sluggish, falling behind other UK jurisdictions and Europe as a whole (Butler et al., 2020). However, there is a strong policy push in favor of “rolling out” RJ as broadly as feasible. In reality, the Scottish Government released the first national “Guidance for the Delivery of Restorative Justice” in 2017, explicitly recognizing the legitimacy of RJ in accordance with current European legislation (Scottish Government, 2017). The purpose of the guideline was to guarantee that, in Scotland, when RJ procedures are available; they are carried out in a coordinated, uniform, and victim-focused way.
The hazards associated with RJ implementation might have an impact on both the victim and society as a whole. Butler et al. (2020) claim that one danger of integrating RJ with the criminal justice system is the expansion of the net, which becomes more obvious when RJ is used as a kind of diversion from indictment. RJ’s victim-centeredness might also be diminished when the criminal court system uses them, which would be against the 2014 Victims and Witnesses Act and Directive 2012/29/EU (Butler et al., 2020). According to Calkin (2021), unlike schools that identify as “restorative,” restorative practice (RP) does not form the foundation of the prisons’ worldview. Instead, schools utilize RP as a kind of social “lubricant,” handling difficulties as they emerge at the whim of those qualified to use it (Calkin, 2021). The victim runs the danger of being instrumentalized by the court system if RJ is just seen as a means of lowering recidivism.
In terms of cost-effectiveness, RJ has the potential to lower criminal justice-related expenses. According to research by Vooren et al. (2022) in the Netherlands, the RJ program (Halt) lowers youth recidivism, which lowers federal government expenditures for managing juvenile institutions. For example, Vooren et al. (2022) found that the restorative program increases the likelihood of repeating criminal behavior by 39.3 percent. As such, the perceived costs of criminal behavior in the incomplete contract—in this case, without punitive action—are higher than the costs of criminal activity with the Halt sanction.
Probation and Judicial Supervision
In most countries, probation and court supervision are not defined. Notably, this is not unexpected given the many conceptions of probation. Historically, in many jurisdictions, probation served almost purely as a welfare role. Placing a criminal on “probation” simply meant that a social welfare agency would give special attention to the criminal’s welfare and other requirements. In many nations, this is still the case, but in others, the probation service has developed into an entity mainly responsible for ensuring that offenders comply with court orders about what they must or must not do to stay in the community as opposed to being incarcerated. This type of intense probation, as it is often called, may be part of the probation order and may help keep criminals away from victims.
Social Control Theory is the philosophical foundation of probation and judicial supervision. According to social control theory, control is maintained by an individual’s ongoing interaction with the conventional order—by their links to family, school, employment, and other daily activities and beliefs (Hirschi & Gottfredson, 2018). While there are other probationary period requirements, the Fourth Amendment of the United States receives the most attention. It protects citizens against unreasonable searches and seizures by law enforcement (Carthew, 2019). However, this immunity does not apply to those on probation. In this instance, however, the residences of people on probation may be inspected at any moment without a warrant.
Probation in Kenya goes further to rehabilitate juvenile offenders by providing them with material help such as school uniforms and other school-related expenditures. They are also admitted to career and technical colleges; those with talents are given equipment and aided in launching small firms; and they are incentivized to be self-employed (Omboto, 2022). According to Omboto (2022), probationary sanctions are intended for juvenile delinquents. According to the National Crime and Research Center (2019), the average number of probationers each year between 2014 and 2018 was 12,886. This shows that people are becoming more aware of the advantages of probation over jail time, which has caused the number of criminals on probation to rise.
Probation reduces the costs associated with maintaining and sheltering criminals in prisons. According to Okonofua et al. (2021), probation as an alternative to jail reduces expenses associated with incarceration and enhances the federal government’s revenue reserve. In most instances, the offender is permitted to maintain formal employment, allowing them to support their families. Probation also lessens the danger of criminal socialization, which occurs when incarcerated offenders interact with other criminals. As such, crime rates are lowered, and the government consequently spends less money on the administration of convicts.
Probation increases the danger to the community and to the sufferers. For example, probation raises the social cost to society through increasing social responsibility. In this situation, a drug addict may be put under the supervision of professional caregivers, who may get monetary compensation for assisting the probationer. Second, some offenders who were first deemed to be less dangerous may end up posing a threat to society. Lastly, probation results in discriminatory and uneven consequences for reintegration programs, which are difficult for women (Omboto, 2022). So, even though probation is a better option than jail and saves both the federal government and society money, there are some risks that need to be thought about before it can be put into place.
Challenges for Society to Make Reforms to Mass Incarceration
High rates of criminal activity and imprisonment impose enormous costs on society, with detrimental repercussions on people, households, and societies that endure over time. According to deVuono-Powell et al. (2015), aside from paying fees and penalties associated with a loved one’s detention, many families also experience a considerable loss of revenue during confinement. Moreover, according to deVuono-Powell et al. (2015), over sixty percent of previously jailed individuals remain jobless even one year after release; for many, finding permanent work even years after release is sometimes impossible. Consequently, because it’s hard for them to support their families, most of them go back to doing illegal things to make money. Such methods may result in additional measures against accused persons who would not otherwise be susceptible to the regulation of the criminal justice system, thus “widening the net” (deVuono-Powell et al., 2015, p. 25). Furthermore, the reduction in benefits and inability to pay exorbitantly expensive criminal justice debt can have severe repercussions for families, exacerbating their financial stability.
Conclusion
In conclusion, philosophical and conceptual foundations of corrections are based on retribution, deterrence, incapacitation and rehabilitation. However, despite the existence of many alternative approaches to mass incarceration in the contemporary judicial systems, RJ and probation and judicial supervision have been used to address the negative effects of imprisonment. Moreover, probation and judicial supervision are hindered by threats of retaliation, the possibility of escape, and the social damages caused by dangerous criminal offenders. Therefore, in order to reform mass imprisonment, the federal and state governments should invest in and assist previously jailed persons, their families, and their communities, restoring their possibilities for a better future.
References
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Calkin, C. (2021). An exploratory study of understandings and experiences of implementing restorative practice in three UK prisons. British Journal of Community Justice, 17(1), 92-111. Web.
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deVuono-powell, S., Schweidler. C., Walters, A., & Zohrabi, A. (2015). Who pays? The true cost of incarceration on families.
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Vooren, M., Rud, I., Cornelisz, I., Van Klaveren, C., Groot, W., & Maassen van den Brink, H. (2022). The effects of a restorative justice programme (Halt) on educational outcomes and recidivism of young people. Journal of Experimental Criminology, 1(1), 1-21. Web.